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Nkandla judgment: high noon for President Zuma
1 April 2016

Institutions matter.

South African President Jacob Zuma is slowly starting to find that out. During his presidency, he has waged a systematic war against the country’s democratic institutions. Since the firing of former finance minister, Nhlanhla Nene and the subsequent statement by Deputy Minister of Finance, Mcebisi Jonas, of the Guptas’ influence over state appointments, it is clear that for Zuma, being president is about protecting one’s own interests and those of your friends.

Anyone getting in the way is mere collateral damage.

The National Prosecuting Authority and the South African Police Service are examples; as are various state-owned enterprises. All save the South African Post Office (for now, at least) under Mark Barnes have been subjected to intolerable political interference. The revelations surrounding South African Airways and Eskom corporate governance are legion; as are those about the national broadcaster.

Yet, as often happens, democracies can be annoyingly resilient. And South Africa, despite all its challenges and quirks, often shows surprising built-in resilience. And so in this context, Zuma would come up against the seemingly coy Advocate Thuli Madonsela after her appointment as Public Protector. He would also repeatedly come up against the courts.

Despite the sometimes-blatant attempts to hijack the judiciary, in general the judicial system has held up against some pretty damning attacks from the president and his supporters. African National Congress (ANC) Secretary-General Gwede Mantashe has in the past not hesitated to call judges ‘counter-revolutionaries’ when he felt Zuma was under pressure. Mantashe may now have changed that tune.

Madonsela’s tenacity is possibly her greatest contribution to South Africa’s democracy
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Chief Justice Mogoeng Mogoeng was not the ‘establishment favourite’ to head the Constitutional Court (ConCourt); and certainly not as favoured as the erudite deputy Chief Justice, Dikgang Moseneke.

Yet, he has been unpredictable and has shown an independent-minded streak, emboldened by his security of tenure. During the Nkandla hearing, Mogoeng took the lead and managed the process with impressive acuity.

In the background, during the years of unfolding scandal in the Zuma presidency, has been a robust media which first broke the story of Nkandla excess. Madonsela, for her part, did not give up despite concerted attempts by the ANC to vilify her. This tenacity will possibly be her greatest contribution to strengthening South Africa’s democracy.

And so yesterday, the ConCourt faced a test of sorts, because its judgment was going to the very heart of power.

Section 83 of the Constitution states that ‘The President … must uphold, defend and respect the Constitution as the supreme law of the Republic.’ The Constitution uses mandatory language; ‘must’. And indeed the Constitutional Court reaffirmed that language in its judgment.

From the very beginning of the judgment, it was clear that Chief Justice Mogoeng, delivering a ‘unanimous’ judgment of the ConCourt, would not be mincing his words. The judgment carefully outlined the ‘constitutional architecture’ and its crucial components. Already then it was not looking good for the president.

Of course the quite extraordinary about-turn by Zuma’s senior counsel, Jeremy Gauntlett – when he said the Public Protector’s report was indeed binding – left the matter with an air of inevitability. But, it was always going to be about how the ConCourt crafted its judgment; and the language it was going to use.

Would it be directly damning; or would it skirt the issue? Well, we know now that the ConCourt was in no mood for being tame. The court reasserted the powers of the Constitution when it held unequivocally about the president that, ‘He is a constitutional being by design, a national pathfinder, the quintessential commander-in-chief of state affairs and the personification of this nation’s constitutional project.

‘The president thus failed to uphold, defend and respect the Constitution as the supreme law of the land. This failure is manifest from the substantial disregard for the remedial action taken against him by the Public Protector in terms of her constitutional powers.’

It is the ANC and the citizens of South Africa who will finally seal Zuma’s fate
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One’s mind had to wander to the many guffaws in Parliament as the president bullied his way past questions on Nkandla; and his mocking of those who believed he ought to be held to account. And indeed, one’s mind wandered to the disgraceful way in which Parliament and Zuma’s sycophantic ministers kowtowed to protect his excess from scrutiny.

The question, of course, was always about whether the Public Protector’s recommendations are binding or not. There the ConCourt was equally unequivocal, as it held her recommendations were ‘binding’. Yet, it went further and said that, ‘She is the embodiment of a biblical David, that the public is, who fights the most powerful and very well-resourced Goliath, that impropriety and corruption by government officials are. The Public Protector is one of the true crusaders and champions of anti-corruption and clean governance.’

And it saved some rather choice words for Parliament, intended to speak on behalf of the people of South Africa, when it said, ‘the National Assembly chose not to challenge the Public Protector’s report on the basis of the findings made by the minister of police and its last ad hoc committee. Instead it purported to effectively set aside her findings and remedial action, thus usurping the authority vested only in the judiciary.

‘But, there was everything wrong with the National Assembly stepping into the shoes of the Public Protector, by passing a resolution that purported effectively to nullify the findings made and remedial action taken by the Public Protector and replacing them with its own findings and “remedial action”. This, the rule of law is dead against. It is another way of taking the law into one’s hands and thus constitutes self-help.’

Reading this litany of criticism one cannot help but wonder how on earth the National Assembly speaker, the minister of police, the members of Parliament who voted for the Nkandla report to be adopted – and indeed the president himself – could survive such hard-hitting findings? For the ConCourt was right; there was ‘everything wrong’ with the way in which they acted; putting party and president above all.

The unravelling will take a while, and the ConCourt judgment is yet another nail in Zuma’s coffin
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But, this is South Africa. This judgment has been a powerful vindication of the Public Protector and those in the media and civil society who would not let this story go. Yet, it is the ANC and the citizens of this country who will finally seal Zuma’s fate.

The unravelling will take a while, and the ConCourt judgment is yet another nail in Zuma’s coffin. He rules; but with what legitimacy when the highest court in the land has made a unanimous finding that he breached the Constitution – that sacred pact between citizens and their elected representatives? As Mogoeng said, the Constitution is about ensuring that the voiceless have a voice and are protected from an ‘unchecked abuse of power.’

Of course one might expect that a head of state would exercise his conscience and resign given yesterday's judgment, but South Africa knows better than to expect that to happen. The ANC is studying the judgment, as is Zuma – yet the party was quick to affirm the ConCourt’s powers. As well it should.

In the slow process of deliberation, which the ANC favours so well when faced with a conundrum, the undoing will take some time yet. The opposition Democratic Alliance is calling for impeachment, though it does not have the numbers for such an exercise to be fruitful.

That would need a two-thirds majority in the National Assembly. The ANC has the numbers, of course, although it could well be said that Zuma has committed a ‘serious violation of the Constitution.’ Equally, a motion of no confidence in the president will need a ‘majority’ of the National Assembly members in terms of Section 102 of the Constitution. So, where the ANC has the numbers to defend the indefensible, it will need the party itself, outside of Parliamentary rules, to deal with the president and the current situation.

And so yesterday’s ConCourt judgment might not spell the immediate end many wish for this tawdry and corrupt presidency, but it surely will come. The end will be a drawn-out affair and in the meantime, citizens would do well to ponder on the words of the ConCourt judges when they mark their ballot papers come election time later this year. South Africa’s democratic institutions may be frayed at the edges, but yesterday the ConCourt reaffirmed the power of the Constitution, as well as the centrality of the rule of law in holding the powerful to account. Zuma might survive for now, but there really is no place to hide in light of this judgment.

Judith February, Consultant, Governance, Crime and Justice Division, ISS Pretoria

This article first appeared on EyeWitnessNews.

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